Case 2:21-cv-01452 Document 1 Filed 03/26/21 Page 1 of 11
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` UNITED STATES DISTRICT COURT
`EATERN DISTRICT OF PENNSYLVANIA
`_______________________________________
`CHPH Agency, Inc.
`625 E. Girard Ave 1st FLR
`Philadelphia PA 19125
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` COMPLAINT
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`Plaintiff,
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`Case No: _______
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`v.
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` JURY TRIAL DEMANDED
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`Medi-Home Health Care Agency Company
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`Medi-Home Health Care Agency
`3634-3638 N. Broad St.
`Philadelphia, PA
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` Defendant
`TRADEMARK INFRINGEMENT COMPLAINT
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` Plaintiff CHPH Agency, Inc. files this cause of action against Defendants Medi-Home
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`Philadelphia PA 19140
`Health Care Agency and Medi-Home Health Care Agency Company for trademark
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`infringement. Defendants are using a mark in commerce that has the same design and is
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`confusingly similar to Plaintiff’s federally registered trademark. Defendants have full
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`knowledge of the infringement and continue to infringe after Plaintiff told Defendants about
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`Plaintiff’s trademark and demanded that Defendants stop the infringement. Plaintiff states:
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`1.
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` Plaintiff CHPH Agency, Inc. is a corporation organized under the laws of
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`Pennsylvania with a place of business at 625 E. Girard Ave 1st FLR, Philadelphia PA 19125.
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`2.
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` Defendant Medi-Home Health Care Agency Company is a corporation
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`organized under the law of Pennsylvania with a place of business at 3634-3638 N. Broad St.,
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`Philadelphia PA 19140.
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`3.
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` Defendant Medi-Home Health Care Agency is a corporation organized under
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`the law of Pennsylvania with a place of business at 3634-3638 N. Broad St., Philadelphia PA
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`19140.
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`4.
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` Ikishia Jackson owns the trademark registered with the United States Patent and
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`Trademark Office (“USPTO”) with registration number 6,123,756 (“CHPH Trademark”). Ms.
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`Jackson also is the sole owner of Plaintiff. Prior to the first use in commerce of the CHPH
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`Trademark, Ms. Jackson exclusively licensed full use of and rights related to the CHPH Trademark
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`to Plaintiff. That License is exclusive to Plaintiff and it includes all rights to enforce the CHPH
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`Trademark, including the right to prevent others from using the CHPH Trademark and to recover
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`damages caused by infringement or other violations regarding the CHPH Trademark.
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`5.
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` The CHPH Trademark was first used in commerce on or before April 28, 2017.
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`6.
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`7.
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` CHPH Trademark is an illustration drawing which includes letters.
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` CHPH Trademark consists of the stylized letters "CHPH" at bottom, then 3 stick-
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`figure bodies with heads directly above the letters "HP" with each letter having an elongated side
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`separating the three figures. Behind the figures is a heart overlapped by a roof with a chimney.
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`8.
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` This is a copy of the drawing of the CHPH Trademark filed with the USPTO:
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`[Space intentionally left blank]
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`Case 2:21-cv-01452 Document 1 Filed 03/26/21 Page 3 of 11
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`9.
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` Defendants infringe because they use in commerce a mark that has the same design
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`and is confusingly similar to CHPH Trademark. The following is a picture of the mark used by
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`Defendants (“Defendants’ Mark”):
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`10. Defendants at times use infringing Defendants’ Mark with its name as shown in
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`the following picture:
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` l?
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`t
`it
`”HEALTHCARE AGENCY
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`11.
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`12.
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`Defendants” Mark is not registered with the USPTO.
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`Defendants’ Mark and the CHPH Trademark both have a heart, broken up by a
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`roof with a chimney and three stick people underneath.
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`'
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`13.
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`Plaintiff has received comments by people who were actually confused about
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`whether Defendants” Mark was referring to services provided by Plaintiff.
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`14.
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`I
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`Plaintiff and Defendants are home health care agencies and direct competitors.
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`All three are operating in Philadelphia, PA.
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`15.
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`A comparison bylsight of the pictures of CHPH Trademark and Defendants”
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`Mark reveals that Defendants” Mark is likely to cause confusion in the minds of consumers about
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`the source of services offered under their respective marks.
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`16.
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`Because the marks have the same design and a high degree of similarity in
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`appearance and Plaintiff and Defendants provide the same services, consumers are likely to assume
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`(mistakenly) that the services come from a common source.
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`17.
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`_ The use of Defendants” Mark infringes the CHPH Trademark.
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`18.
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`Defendants use Defendants” Mark all around the City of Philadelphia. Copies of
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`pictures of Defendants’ use of the Defendants” Marks in commerce are attached as Exhibit A.
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`19.
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`Defendants placed the infringing Defendants” Mark on billboards in Philadelphia
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`after Plaintiff told Defendants that Defendants were infringing, that the CHPH Trademark was
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`federally registered, and Plaintiff provided to Defendants a picture of Plaintiff’s registered
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`Trademark.
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`20. On December 17, 2020, through counsel Plaintiff sent Defendants a letter by
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`regular Mail and by email putting Defendants on notice of infringement (“First Notice”). In the
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`First Notice, Plaintiff provided the registration number of the federally registered CHPH
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`Trademark, a copy of a picture of the CHPH Trademark filed with the USPTO and a copy of
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`Defendants’ mark to illustrate the similarity between the two marks.
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`21. Defendants did not respond to the First Notice but instead continued to use
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`Defendants’ Mark in commerce. A copy of First Notice is attached as Exhibit B.
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`22. On January 13, 2021, through counsel by email, Plaintiff again sent Defendants
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`the letter originally sent on December 17, 2020 with the same copies of the CHPH Trademark and
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`Defendants’ Mark sent on December 17, 2020. In that email, Plaintiff’s counsel said, “[t]he attached
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`letter and exhibits to that letter provide that MediHome HealthCare Agency is violating a federally
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`registered trademark owned by my client; and demands that MediHome HealthCare Agency stop that use.
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`Please send this information to the appropriate person at MediHome HealthCare Agency. Thank you.”
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`(“Second Notice”). A copy of the Second Notice is attached as Exhibit C.
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`23. Minutes after the email with the Second Notice was sent to Defendants, counsel
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`for Plaintiff called Defendants’ office and the person receiving the call confirmed that the email
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`had been received by Defendants and that the Second Notice would be given to a person with
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`authority for Defendants to respond to the notice.
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`24. Other than confirming that the Second Notice had been received, Defendants did
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`not respond to the Second Notice but instead continued to use Defendants’ Mark in commerce,
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`including on billboards.
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`25. Defendants have not attempted explain to Plaintiff why it is continuing to infringe.
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`Defendants’ infringement is willful.
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`NATURE OF THE ACTION
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`This is a civil action for trademark infringement and unfair competition under the
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`Lanham Act, 15 U.S.C. §§1114 and 1125 and violation of Pennsylvania's Unfair Trade
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`Practices and Consumer Protection Law.
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`JURISDICTION AND VENUE
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`26. This Court has subject matter jurisdiction over Plaintiff’s Lanham Act
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`claims pursuant to 15 U.S.C. §1121 and 28 U.S.C. §§1331 and 1338(a).
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`27. This Court has supplemental jurisdiction over the pendent state law claims
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`pursuant to 28 U.S.C. §1367 in that the state law claims are integrally interrelated with
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`Plaintiff’s federal claims and arise from a common nucleus of operative facts such that the
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`administration of Plaintiff’s state law claims with its federal claims furthers the interest of
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`judicial economy.
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`28. This Court has personal jurisdiction over Defendants as they maintain
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`places of business in Eastern Pennsylvania and within the jurisdiction of this Court; and
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`many and perhaps all acts of infringement occurred within the jurisdiction of this Court.
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`29. Venue is proper here pursuant to 28 U.S.C. § 1391(b) because Defendants
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`maintain a place of business in Eastern Pennsylvania and within the jurisdiction of this
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`Court; and perhaps all acts of infringement occurred within the jurisdiction of this Court.
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`Case 2:21-cv-01452 Document 1 Filed 03/26/21 Page 7 of 11
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` COUNT I
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`Infringement of Federally Registered Trademark
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`15 U.S.C. § 1114(1)(a)
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`30. Plaintiff realleges and incorporates all allegations above.
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`31. Plaintiff has used its federally registered CHPH Trademark in commerce.
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`32. Defendants’ infringement includes, but is not limited to, infringement after
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`Defendants had both actual and constructive knowledge of Plaintiff’s ownership of and rights in
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`CHPH Trademark.
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`33. Defendants adopted and continue to use in commerce Defendants’ Mark with
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`full knowledge that infringing use of CHPH Trademark would cause confusion, mistake and/or
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`deception.
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`34. Defendants offer their goods and services under the infringing mark in the
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`same channels of trade as those in which Plaintiff’s legitimate goods and services are offered.
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`35. Defendants’ actions constitute knowing, deliberate, and willful infringement
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`of Plaintiff’s federally registered mark. The knowing and intentional use renders this an
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`exceptional case under 15 U.S.C. § 1117(a).
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`36. As a result of Defendants’ infringement, Plaintiff has suffered substantial
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`damages, including lost revenue and profit as well as the continuing loss of the goodwill and
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`reputation established by Plaintiff in its federally registered mark. This continuing loss of
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`goodwill cannot be properly calculated and thus constitutes irreparable harm and an injury for
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`which Plaintiff has no adequate remedy at law. Plaintiff will continue to suffer irreparable harm
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`unless this Court enjoins Defendants’ conduct.
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`COUNT II
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`Federal Unfair Competition and False Designation of Origin
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`37. Plaintiff realleges and incorporates all allegations above.
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`15 U.S.C. § 1125(a)
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`38. Defendants have deliberately and willfully attempted to trade on Plaintiff’s
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`goodwill in its name and marks and the reputation established by Plaintiff in connection with
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`its products and services, as well as in order to confuse consumers as to the origin and
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`sponsorship of Defendants’ goods and to pass off their products and services in commerce as
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`those of Plaintiff.
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`39. Defendants’ unauthorized conduct has also deprived and will continue to
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` deprive Plaintiff of the ability to control the consumer perception of its products and services
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`offered under CHPH Trademark, placing reputation and goodwill of Plaintiff in the hands of
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`Defendants.
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`40. Defendants’ conduct is likely to cause confusion, mistake, or deception as to
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`the affiliation, connection, or association of Defendants with Plaintiff, and as to the origin,
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`sponsorship or approval of Defendants and their products and services, in violation of Section
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`43 of the Lanham Act, 15 U.S.C. § 1125(a)(1).
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`41. Defendants had knowledge of Plaintiff’s prior use of CHPH Trademark and
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`continued to use Defendants’ Mark. The knowing, intentional, and willful nature of the acts
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`set forth herein renders this an exceptional case under 15 U.S.C. § 1117(a).
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`42. As a result of Defendants’ conduct, Plaintiff suffered commercial damage, as
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`well as the continuing loss of the goodwill and reputation established by CHPH Trademark.
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`This continuing loss of goodwill cannot be properly calculated and thus constitutes irreparable
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`harm and an injury for which Plaintiff has no adequate remedy at law. Plaintiff will continue to
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`suffer irreparable harm unless this Court enjoins Defendants’ conduct.
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`COUNT III
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`Violation of Pennsylvania's Unfair Trade Practices and Consumer Protection Law
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`43. Plaintiff realleges and incorporates all allegations above.
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`44. Defendants have engaged in unfair competition by intentionally using
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`Defendants’ Mark in order to confuse consumers as to the origin and sponsorship of
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`Defendants’ goods and services and to pass their products and services off as those of Plaintiff.
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`45. Defendants’ conduct is likely to cause confusion, mistake, or deception as to
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`the origin, sponsorship or approval of Defendants and their products and services.
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`46. Defendants had direct and full knowledge of Plaintiff’s prior use of and rights
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`in CHPH Trademarks before acts complained of herein.
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`47. Defendants’ unlawful and unfair conduct has led to a material diminution of
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`the reputation and goodwill of the CHPH Trademark.
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`48. As a result of Defendants’ conduct, Plaintiff has suffered substantial damages,
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`as well as the continuing loss of the goodwill and reputation of the CHPH Trademark. This
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`continuing loss of goodwill cannot be properly calculated and thus constitutes irreparable
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`harm and an injury for which Plaintiff has no adequate remedy at law.
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`JURY DEMAND
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`Plaintiff requests a jury trial of all issues that may be tried to a jury in this action.
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`PRAYER FOR RELIEF
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` WHEREFORE, Plaintiff prays for an Order and Judgment as follows:
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`1. Entry of an order requiring that Defendants and their officers, agents, servants,
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`employees, owners and representatives, and all other persons, firms or corporations in active
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`concert or participation with them, be enjoined and restrained from:
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`a. Using in any manner the Defendants’ Mark or any name, mark or
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`domain name that is confusingly similar to CHPH Trademark.
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`b. Doing any act or thing calculated or likely to cause confusion or mistake
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`in the minds of members of the public or prospective customers of Plaintiff’s products or
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`services as to the source of the products or services offered for sale, distributed, or sold,
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`or likely to deceive members of the public, or prospective customers, into believing that
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`there is some connection between Defendants and Plaintiff.
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`2.
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` Ordering Defendants to preserve through trial and then deliver up for
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`destruction, pursuant to 15 U.S.C. § 1118, all Internet webpages / scripts / html code, articles,
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`packages, wrappers, products, displays, labels, signs, vehicle displays or signs, circulars, kits,
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`packaging, letterhead, business cards, promotional items, clothing, literature, sales aids,
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`receptacles, templates or other matter in the possession, custody, or under the control of
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`Defendants or their agents bearing Defendants’ Mark.
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`3.
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` Directing Defendants to provide an accounting of revenue, expenses and
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`profits made by Defendants as a result of Defendants’ conduct of using Defendants’ Mark.
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`4.
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` Ordering Defendants, pursuant to 15 U.S.C. § 1116(a), to file with this Court
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`and serve upon Plaintiff within thirty (30) days after entry of the injunction a written report under
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`oath describing in detail the manner and form in which Defendants have complied with the
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`injunction.
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`5.
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` Ordering Defendants to pay a judgment in the amount of Plaintiff’s actual
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`damages under 15 U.S.C. § 1117 and Pennsylvania law, and/or statutory damages as well as
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`Defendants’ profits, and pre- and post-judgment interest pursuant to 15 U.S.C. § 1117, in an
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`amount to be proven at trial.
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`6.
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` Ordering Defendants to pay Plaintiff’s attorney’s fees and costs of
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`this action under 15 U.S.C. § 1117 and/or Pennsylvania law.
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`7.
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` Ordering Defendants to pay a judgment for enhanced damages under 15
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`U.S.C. § 1117.
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`8.
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` Granting Plaintiff such other and further relief as the Court deems just
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`and proper.
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` SALMON, RICCHEZZA, SINGER & TUCHI LLP
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`BY:
`/s/WMMullineaux__________________________
`William Mark Mullineaux, Esquire
`PA I.D. 40964
`1601 Market St., Suite 2500
`Philadelphia, PA 19103
`Phone: (610) 291-3850
`Fax: (215) 279-8267
`Email: mmullineaux@srstlaw.com
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